Starting or Continuing a Disability Claim After Someone's Death

Find out if you can start, continue, or appeal a Social Security disability claim after the applicant has died.

The Social Security disability application process can take many months, even years. Unfortunately, many disability applicants die before they're awarded benefits. Some people are eligible for benefits but don't apply before dying, and some applicants die during the many months it takes to get disability benefits approved.

In some cases, surviving family members and heirs can start a disability claim for someone who's died or continue one that's already open. Who could receive the potential benefits depends on which Social Security disability programs the deceased worker was eligible for.

The Social Security Administration (SSA) offers two basic types of disability benefits:

• Social Security disability insurance (SSDI), which is based on the worker's own earnings record, and
• Supplemental Security Income (SSI), disability benefits for people with low income and assets.

Here's what happens when a disability applicant dies before Social Security grants SSDI or SSI benefits, including when the applicant's surviving family member might be able to continue a claim that was already started.

• How Does an Applicant's Death Affect an SSDI Claim?
• Who Can Collect Social Security Survivors Benefits?
• How Can a Social Security Advocate or Lawyer Help in Death Claims?
• What Happens to an SSI Claim After the Applicant Dies?
• How to Pursue or File a Claim After the Worker's Death

How Does an Applicant's Death Affect an SSDI Claim?

SSDI benefits are based on the applicant's work record—how much Social Security (FICA) tax the worker has paid into the system—rather than poverty. Because SSDI benefits are essentially insurance benefits, Social Security is more receptive to family members filing and continuing posthumous (after death) disability claims.

There's almost always a potential beneficiary—or more than one.

Who Can Benefit From an SSDI Claim After the Applicant's Death?

There can be multiple "parties of interest" to a deceased worker's SSDI claim, including all of the following:

• the deceased worker's family members
• the worker's disability advocate or lawyer, and
• all government agencies to which the worker owed money.

Any of these parties can pursue the SSDI application, appeal, or hearing—even if the person or agency isn't the primary beneficiary.

Who Will Get Paid SSDI Benefits First?

Before Social Security pays beneficiaries, the SSA will honor a few specific types of liens on the deceased worker's Social Security record. Those include liens for:

• child support owed, and
• money owed to federal agencies like:
  • the IRS
  • the Veterans Administration (VA)
  • Social Security
  • the Department of Education (federal student loans), or
  • USDA (the United States Department of Agriculture).

  Next, Social Security will prioritize which beneficiaries get paid first. Unless a court determines a beneficiary intentionally caused the applicant's death (in which case that person can't collect anything), SSDI payments are made to the following parties in order:

  1. To the surviving spouse who was either living in the same household as the applicant at the time of death or who, for the month of death, was entitled to a monthly Social Security benefit on the same record as the deceased. If there's no surviving spouse, then:
  2. To the applicant's children (in equal shares) who, for the month of death, were entitled to a monthly Social Security benefit on the same earnings record as the deceased. If there are none, then:
  3. To the applicant's parents (in equal shares) who, for the month of death, were entitled to a monthly Social Security benefit on the same earnings record as the deceased. If there are none entitled, then:
  4. To a surviving spouse (or spouses, in equal shares) who doesn't qualify under the above conditions. If there are none, then:
  5. To the applicant's children who don't qualify under the above conditions—that is, adult children (in equal shares). If there are none, then:
  6. To the applicant's parents who don't qualify under the above conditions. If there are none, then:
  7. To the legal representative of the deceased person's estate.

  For example, if the deceased worker is divorced, the worker's minor children would be entitled to an equal share of any underpayment—whether the children lived with the worker or the ex-spouse.

  Filing an SSDI Claim After Death

  Any beneficiary can file an application for SSDI for the deceased worker. But any such application must be filed on one of the following time frames:

  • within three months after the month of the worker's death, or
  • if the diseased worker had established a protective filing date, the beneficiaries have up to six months to apply for benefits—longer if Social Security doesn't issue a notice stating when the protective filing period ends.

  But Social Security can refuse to take the SSDI application after the worker's death if either of the following conditions applies:

  • The applicant hadn't been disabled for more than five months before death and didn't have ALS. (Social Security doesn't pay SSDI benefits for the first five full months after a person is found "disabled" due to the SSDI waiting period unless the person had ALS.)
  • The person was performing gainful work before death—earning more than the "SGA" amount. (Even if a worker was terminally ill, Social Security wouldn't usually find someone making more than the SGA disabled.)

  Continuing an SSDI Application or Appeal After an Applicant Has Died

  Anyone who might benefit from a claim is allowed to continue the claim, and even someone who wouldn't receive benefits—such as the applicant's mother or estate executor—can continue the claim. Why would someone who can't collect the underpayment pursue an SSDI death claim? There are a few people who might take such action, including:

  • someone who wants to help a family member who would have difficulty handling the Social Security claim or can't be located yet, or
  • someone eligible for a survivor's benefit on the deceased worker's account and who will get a better benefit if Social Security determines the deceased worker was "disabled" before death.

  Does Social Security notify you that a disability claim is pending after a relative's death and that you might benefit from a favorable SSDI disability determination? Sometimes, but not always.

  Social Security won't spend any time looking for a beneficiary if there isn't an obvious one noted in the file—like a surviving spouse or children with a known address. And Social Security doesn't have to contact anyone—even obvious beneficiaries—if the underpayment (the amount the beneficiaries would get) is less than $50.

  If Social Security doesn't send you a notice, you might still find out about the claim if you receive the applicant's mail. When a pending disability claim is at the initial application stage or the reconsideration level, Social Security will continue to work on the claim until a decision is made, and the SSA will continue to send notices to the applicant's last known address.

  If the applicant's disability claim has been denied and an appeal has made it to the hearing level when the applicant dies, you might be notified of the claim if the hearing hasn't yet taken place. The Office of Hearings Operations (OHO) will initiate an inquiry to find a substitute party to pursue the hearing.

  Who Can Collect Social Security Survivors Benefits?

  If a deceased worker was eligible for SSDI or Social Security retirement benefits, the worker's surviving spouse and children are generally eligible for survivors benefits. Unlike filing (or continuing) a claim on behalf of the deceased worker, family members file for survivors benefits in their own names.

  In addition, Social Security pays a one-time death benefit of $255 to the surviving spouse, or if there isn't one, to surviving children who are receiving Social Security dependents benefits.

  How Can a Social Security Advocate or Lawyer Help in Death Claims?

  If the deceased applicant was already represented by a disability advocate—a lawyer or nonlawyer representative—that person continues to have the authority to file appeals on behalf of the applicant. The advocate can help identify and find beneficiaries and counsel them about their rights.

  How Hiring a Lawyer Could Help

  If the deceased applicant wasn't represented, a beneficiary could hire a lawyer to help with the following:

  • continuing the SSDI claim
  • advocating for a favorable decision, and
  • ensuring payments after an award are properly distributed.

  A disability representative can also look into other benefits and claims that Social Security might not discuss with beneficiaries. For example, if the deceased worker had a disabled child over 18, that child might be eligible for disabled adult child (DAC) benefits based on the deceased worker's earning record. An attorney could help prove the adult child's case.

  You Might Be Able to Get Special Widow/Widower Benefits

  There are special Social Security benefits available for some widows and widowers. You might be eligible for these benefits if:

  • you're the surviving spouse
  • you're disabled, and
  • you're over 50 or will reach that age within seven years of the SSDI applicant's death.

  A disability attorney can help with your disabled widow or widower benefit claim.

  Getting Medicare to Pay the Deceased Worker's Last Medical Bills

  SSDI recipients become eligible for Medicare after 24 months on disability. When a last illness has been costly, any assets in an estate, like bank accounts and real estate, could be at risk because of the medical bills.

  So, if a lawyer can establish that Medicare should pay those bills, it can actually help the deceased person's family more than receiving disability benefits would.

  If the applicant wasn't disabled for long, Medicare benefits wouldn't be available (unless the deceased worker had one of three medical conditions that expedite Medicare).

  A Lawyer Might Be Able to Open a Prior Claim

  Sometimes, an SSDI applicant chooses to file a new disability application after Social Security has denied a claim. And that can make a difference.

  If the deceased applicant had a prior claim for disability benefits that wasn't appealed before the last one was started, a lawyer might be able to help get that claim reopened. Winning that initial claim could qualify the applicant for Medicare and get a larger underpayment for the beneficiaries.

  Should You Pursue a Disability Claim After an Applicant's Death?

  Most lawyers will help explore how feasible it might be to file a Social Security disability claim after a worker's death or continue an appeal. Usually, you can get this kind of consultation at no charge or obligation. Working with a lawyer this way can relieve a family of at least one burden during a stressful and difficult time.

  What Happens to an SSI Claim After the Applicant Dies?

  SSI is a disability program designed to help those who haven't worked enough to qualify for SSDI, Social Security's disability insurance program. SSI pays a relatively small benefit to individuals who are disabled, blind, or over the age of 65 and who have little to no income or assets.

  How Social Security handles an SSI claim after the applicant dies depends on where the person was in the application process.

  Can You Start an SSI Claim After the Applicant's Death?

  You generally can't start an SSI claim for someone after the person dies—even if the applicant would have qualified for benefits for many months before death. This is because SSI doesn't pay retroactive benefits—benefits covering the time someone is disabled before filing an SSI application. So, if you file an application after the person dies, there's no one who qualifies to collect a monthly SSI disability payment.

  But, if a person contacted Social Security and made an inquiry about filing for disability benefits before dying, that establishes a "protective filing date." The applicant's spouse can file an application within 60 days of the protective filing date—longer if Social Security didn't send a "close out" notice advising the applicant when the protective filing period ended.

  Who Gets the Benefits When an SSI Claim Is Continued After the Applicant's Death?

  If a person with a pending SSI disability claim dies before benefits are awarded, generally, only a spouse who was living in the same household can pursue the SSI claim and collect money that would have been awarded to the applicant. Social Security calls that money an "underpayment" because the applicant wasn't paid what was due.

  An exception to this rule exists for a spouse already receiving SSI. If that's the case, the surviving spouse doesn't have to be in the same household at the time of the applicant's death.

  States that participate in Social Security's Interim Assistance Reimbursement (IAR) program can actually continue an SSI claim themselves, but only if all of the following are true:

  • the state provided basic needs assistance while the applicant's SSI benefits were pending
  • the state has a signed IAR agreement with Social Security, and
  • the applicant signed an agreement to repay the state for any assistance received.

  Currently, 36 states and the District of Columbia have IAR agreements with Social Security.

  A state can also pursue an SSI death claim to establish retroactive Medicaid eligibility. This allows the state to bill Medicaid for any past medical treatment costs that the state paid.

  How to Pursue or File a Claim After the Worker's Death

  When a disability applicant dies after filing a claim, you should first report the applicant's death by either:

  • contacting your local Social Security office, or
  • calling the national SSA office at 800-772-1213.

  How you proceed from there depends on the type of disability benefit involved and whether the deceased person had already applied for benefits (or established a protective filing date).

  How to Continue an Existing SSDI or SSI Claim

  If the disability applicant dies before the administrative law judge (ALJ) has held a disability hearing, you can request to continue the claim. To do so, you must submit a form called the Notice Regarding Substitution of Party Upon Death of Claimant (Form HA-539) to make you the "substitute party." You should also file a form called Claim for Amounts Due in the Case of a Deceased Beneficiary (Form SSA-1724) to help Social Security decide who should receive any payment due .

  You'll also need to submit a copy of the applicant's death certificate from the proper local authority.

  File a New SSDI Claim for a Deceased Worker

  If you're going to file a new SSDI claim on behalf of a worker who's died, call Social Security at 800-772-1213 and tell them you'd like to file a claim for SSDI benefits on behalf of a deceased person.

  And don't delay. If you're going to file a new claim after someone has died, you have only three months from the time of death to do so. Or, if the disabled person established a protective filing date, you have six months from the date of death to file the claim.